Allen

In March 1980, the grand jury returned a multiple-count indictment against defendants and two other persons, charging them with one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371 , and with several substantive counts of aiding and abetting mail fraud, in violation of 18 U.S.C. § 1341 . The case proceeded to a jury trial in late June 1980. At the conclusion of the government’s case, the court acquitted defendant Richard Allen as to all counts. The jury found Richard Allen’s brother, defendant Lee Allen, guilty on the conspiracy count and most of the substantive counts. In November 1981, the grand jury returned another indictment, this one against only these two defendants, charging them again with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371 , and with mail fraud, in violation of 18 U.S.C. § 1341 . In the motions before the court, defendants contend that the double jeopardy clause of the Fifth Amendment bars their prosecution on the second indictment. Alternatively, they seek dismissal of the indictment pursuant to the court’s supervisory power over the administration of criminal justice. In light of the particular facts of…